The conflict in Syria began over four years ago and has since grown into a deadly proxy war which has ignited large regional hostilities, killing more than 300,000 people. The exacerbating humanitarian situation, coupled with international inaction, has led to an epidemic of despair. Concurrently, the conditions in the countries neighbouring Syria are deteriorating due to funding shortfalls as the number of refugees grows, currently exceeding 4 million.[i] Still, this number fails to account for the 7 million people who remain internally displaced in hard to reach and inaccessible locations across the war-ravaged region.[ii]

With no end in sight to the country’s civil war, anguish has increasingly driven refugees to embark upon the perilous journey to Europe. These people are “living in dire conditions and sinking deeper into poverty”, says António Guterres, head of the UN’s refugee agency.[iii] A population with nowhere else to run, many risk their lives making the treacherous sea crossing across the Mediterranean; and those who journey on land face a route littered with obstacles and hidden dangers.

Hungary has become a critical way station on this desperate journey. Yet, rather than relieving those visibly drained arrivals, Hungarian authorities have taken a different approach.

Is Hungary failing to meet its human rights obligations?

Rejected asylum applications, new laws prosecuting those attempting to cross. Viktor Orbán, Hungary’s nationalist prime minister, made his intentions clear when – rather than using national resources for humanitarian purposes – he ordered the building of a metal fence in order to lock refuge-seeking arrivals outside the open-border Schengen zone. The illiberal consequence of this barrier, however, is to take away that which ought to be inalienable.

The right to seek asylum is a juridical concept deeply enshrined in international human rights law.[iv] Despite this fundamental right to international protection, no express duty lays upon states to grant asylum. More often therefore, a states’ power to grant asylum is regarded as a right rather than a duty. This stance is supported by the 1951 Refugee Convention itself, which fails to specifically provide for a duty to grant asylum; an omission which is deeply rooted in the Westphalian concept of territorial sovereignty.

Rather fitting therefore is the description by Goodwin-Gill and McAdam,[v] who characterises refugee law as an “incomplete legal regime for protection, imperfectly covering what ought to be a situation of exception.” This imperfection is a reminder of another human rights vs. state sovereignty battle lost. Making the most of this loophole, many states have created a panorama of laws making it increasingly difficult for people to exercise their right to seek asylum.

On the other side of the argument, the right to seek asylum constitutes a fundamental human right and states remain bound by the principle of non-refoulement. This principle, enshrined in Article 33 of the 1951 Refugee Convention, prohibits the expulsion or return of an individual to a country “where his life or freedom would be threatened.[vi]” As argued by Goodwin-Gill and McAdam, “the peremptory norm of non-refoulement secures admission.”[vii] In order to fulfil this obligation, state parties may therefore be required to grant temporary admission in order to process asylum claim and determine eligibility in line with asylum procedures deemed fair and efficient. Arguably therefore, an almost outright rejection at a country’s frontier would appear to be in breach of the Refugee Convention.

Human Rights Watch (HRW) confirms that Hungary’s new border regime – which has made it practically impossible for refugees to gain protection in Hungary – is in breach of the country’s’ international obligations.[viii] Under European Union law, Hungary has clear obligations as to how it should run asylum procedures.[ix] The recent measures, which have resulted in 48 out of 98 applications asylum applications being rejected within a day[x] (some within 20 minutes[xi]), are therefore untenable in law.

Those whose applications are refused are forcibly removed to Serbia which, according to HRW, cannot be considered a safe country for asylum.[xii] The absence of a functioning asylum system in Serbia is indisputable. According to a recent Amnesty report, only one asylum seeker in 2014 was granted refugee status in Serbia.[xiii] There are also numerous reports, many dating months back, of refugees and asylum seekers being abused, exploited and arbitrarily detained by Serbian police forces.[xiv]

The impotence of the right to seek asylum, of course, is old news. The “not in my back yard” attitude witnessed in May earlier this year – when Australian and Malaysian authorities, amongst others, repeatedly rejected refugees and towed them back to sea, – speaks for itself. In this respect, the brutality which awaited the refugees at the Hungarian border in many ways mirrors the plight of refugees and asylum seekers around the world. The border fence effectively eschews Hungary’s responsibility of its most basic obligation to protect civilians. While the refugee crisis continues to be misportrayed and manipulated in Hungarian media, callous statements which portray refugees as ‘an armed mob of illegal migrants,’[xv] propagate support for Hungary’s actions.

Police abuse of migrants

After Hungary sealed its border with Serbia, violent clashes have erupted between police forces and refugees protesting at the other side of the razor-wired fence. Graphic images have been released of riot police firing tear gas and water cannon at masses of unarmed refugees; their only tool of defence: plastic water bottles and other miscellaneous objects they could find on the ground.[xvi] Amid the chaos, women and children were also caught up in the violence. The crackdown was backed by special anti-terrorist units who approached the refugees in armoured vehicles, drawing on a David vs. Goliath analogy.

While state actors are by international law permitted to use reasonable force against violent crowds, there are strict guidelines which define the legality of such action. Stripping it down to the basics, for the use of force to be legal, it must meet the requirements of necessity and proportionality. In the case of the border clashes, the obvious power imbalance alone supports the argument that the actions by the law enforcement officials amounted to excessive force, thereby constituting a violation of international law.

The indiscriminate nature of force employed likewise suggests that the force used against refugees and asylum seekers had been excessive. A journalist who witnessed the clashes told HRW that police from the Hungarian SWAT unit, TEK, which specialise in counter terrorism, started beating the crowd indiscriminately, including women and children with batons.[xvii] Shocking images that have emerged also fuel allegations that Hungary has failed to meet the minimum human rights standards for treatment of refugees.

Despite gaining widespread acceptance as a ‘non-lethal’ weapon for crowd control purposes, and being widely employed by police forces around the world, there is continuing controversy surrounding the use of tear gas against human populations. In reality, tear gas or lachrymator is a toxic chemical weapon which is difficult to control and often incorrectly used.[xviii] This weapon – by its very nature indiscriminate – can in fact be extremely deadly, as many cases around the world have proven. Only last year, the highly potent agent killed 37 detainees in Egypt.[xix] Notably, the use of tear gas has been banned as a method of warfare by various international treaties, including the Chemical Weapons Convention,[xx] which has been ratified by a large number of states, including Hungary in 1996.[xxi] The illogicality that surrounds the use of teargas as a riot control agent is blatant: although illegal in war, the toxic chemical weapon remains legal in domestic riot control.

The use of water cannons, which has the potential to cause blindness and death, is equally questionable.[xxii] It has also been argued that rather than being a ‘tool of de-escalation’, the use of high-pressure water cannons tends to fuel confrontations.[xxiii]

The use of tear gas and water canons is laced with risks to human life.

Such brutality against refugees – who are among the most vulnerable in society – is reprehensible. Alexander Betts, director of the Refugee Studies Centre at the University of Oxford, confirms that, as a rule of thumb, the the use of force on refugees should be seen as a violation of both international as well as European Union law.[xxiv]

Refugee camp set up like human zoos

While some continue their uncertain journey to Western Europe, many remain stuck in Hungary’s holding zones. The conditions within these camps, which have been described as filthy and overcrowded, fail to meet the minimum human rights standards for treatment of migrants under the European Convention on Human Rights. Peter Bouckaert, Emergencies Director at HRW, said the detainees were held like “cattle in pens”[xxv]; conditions he described as “unfit even for animals.”[xxvi] While journalists and human rights organisations have been barred from entering the two police-run detention centres, the harrowing realty came to light of what has been described as ‘Guantanamo in Europe.’ A video, secretly shot by an Austrian volunteer, shows guards – garbed with ‘helmets and hygiene masks’ – hurling sandwiches into the air for refugees to catch.[xxvii] This profoundly dehumanising imagery brings home searing memories of historic atrocities not lightly recalled.

HRW, while not being able to gain access to the camps, managed to interview former detainees’ who describe traumatic scenes from the two detention centres at the Röszke border – identified as Hangar 1 and Hangar 2. There were reports of people fainting and new-borns vomiting with high fevers receiving no medical assistance.[xxviii] HRW said refugees, who appear to have been held beyond the 36 hour limit, were kept in abysmal conditions and were lacking food, safe drinking water and medical care.[xxix]

Hungary has clear legal obligations under the EU reception directive to treat asylum seekers humanely.[xxx] The directive provides that detainees should have access to housing, food, health care as well as psychological support for vulnerable asylum seekers. Witness statements, film footage and photographic material however, paint a very harrowing picture. The abject conditions in which the refugees are held, which can only be described as hellish, fail to meet European standards. They are symptomatic of a state that has not only failed to provide succour to those in need, but which has continued to violate the human rights of those desperately longing for safety.

Conclusion

The exodus to Europe has refocused international attention on the horrors of the wars in the Middle East, which remains in a state of human rights and humanitarian crises. The grim death tolls and huge spill over effects, long endured by countries neighbouring the war zones, speak for themselves. They reflect a need for international action in response to the conflict. A political solution is more urgent than ever.

The stream of refugees into Europe are a simple consequence that flow from the international community’s paralysis to act and protect suffering populations against human rights abuse. The arrivals, the vast majority of which come from conflict-ridden countries like Syria, Iraq and Afghanistan, deserve to see their human rights and dignity protected and respected. Coming to Europe is not a choice; tragically, it is the only alternative to a horrific reality that many face at home.

The actions by the Hungarian authorities are untenable in both international and European Union law. They violate not only the right to seek asylum, but also detainee’s rights to food, sanitation and medical assistance. Foremost, they also breach the inalienable human right to be treated humanely and with dignity – in whatever circumstances. UN Secretary-General Ban Ki-Moon rightly criticised Hungary’s stance to the refugee crisis as both shocking and unacceptable, calling upon “those standing in their way, to stand in their shoes.”[xxxi]

References

References

[ii] UNHCR, (2015). Total number of Syrian refugees exceeds four million for first time. [online] Available at: http://unhcr.org/4million/#_ga=1.265576460.2085685533.1439693422 [Accessed 21 Sep. 2015].

[iii] UNHCR, (2015). Total number of Syrian refugees exceeds four million for first time. [online] Available at: http://unhcr.org/4million/#_ga=1.265576460.2085685533.1439693422 [Accessed 21 Sep. 2015].

[iv] Article 14 of the Universal Declaration of Human Rights states that “everyone has the right to seek and to enjoy in other countries asylum from persecution.” Available at: http://www.un.org/en/documents/udhr/.

[v] Goodwin-Gill, G. and McAdam, J. (2007). The refugee in international law. Oxford: Oxford University Press.

[xxx]Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection. Available at: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32013L0033&from=EN.

About Caroline Schupfer

Caroline Schupfer is a Law with French graduate from the University of Sheffield. She is a member of the Human Rights Committee at the Montréal Holocaust Memorial Centre and a volunteer at Projets Autochtones du Québec, a non-profit organisation which provides social and professional development services to aboriginal communities. Her research interests centre around transitional justice, green criminology and the protection of vulnerable groups.